The premise of this symposium is that the principle and ideal developed in Brown v. Board of Education (2) and its successor cases lie at the heart of the rationale for affirmative action in higher education. The principle of the school desegregation cases is that racial segregation is an injustice that demands remediation. The ideal of the school desegregation cases is that racial integration is a positive good, without which "the dream of one Nation, indivisible" (3) cannot be realized. Both the principle and the ideal make racial integration a compelling interest. The Supreme Court recognized these claims in Grutter v. Bollinger. However, it failed to take full advantage of them. It thereby failed to answer crucial questions that must be answered by policies subject to strict scrutiny. In this essay, I shall display the links tying Grutter to Brown, discuss the vulnerabilities of Grutter in the absence of an explicit grounding in Brown, and demonstrate how the affirmative action policy upheld in Grutter, when explicitly grounded in Brown, survives strict scrutiny. To understand this argument, it is helpful first to explain the integrationist perspective that underlies it.
I. THE CONTINUING CAUSES OF BLACK DISADVANTAGE
The integrationist perspective begins with a diagnosis of the causal mechanisms that continue to systematically disadvantage blacks. (4) Sixty years after Brown declared state-sponsored racial segregation unconstitutional, and fifty years after the Civil Rights Act of 1964 banned racial discrimination in employment, blacks remain seriously disadvantaged on nearly every measure of well-being. (5) Given that discrimination and overt hostility toward blacks have declined since these landmark legal events, what continues to keep blacks back? Two stubborn legacies of white supremacy play pivotal roles in sustaining black disadvantage: segregation and racial stigma.
Residential segregation is the norm for blacks of all socioeconomic classes in the United States. (6) Segregation of neighborhoods leads to segregation of public schools--levels of which increased in the 1990s. (7) Jobs, too, tend to be racially segregated. (8) Black segregation from the mainstream has profound socioeconomic consequences. It isolates blacks from the predominantly white informal social networks that govern access to economic opportunities. It confines blacks to regions experiencing severe job decline, without adequate means of transportation to the white suburbs where jobs are being created. (9) It deprives blacks of investment opportunities, because their homes do not appreciate in value as white suburban homes do. (10) Lack of housing appreciation, in turn, undermines their access to the credit needed to start businesses. (11) Segregation multiplies and spreads the effects of employment discrimination, by filling blacks' social networks with people who have been similarly shut out of job opportunities. It concentrates and thereby multiplies poverty, exclusion, and disadvantage. Concentrated disadvantage reduces the tax base while increasing the demands on public services in cities where blacks live, resulting in higher tax burdens for poorer services--especially, worse schools--than what whites enjoy. (12) Segregation also impedes the formation of cross-racial political coalitions, by ensuring that public services devoted to black areas will have no spillover benefits for other groups. (13) These consequences of de facto segregation affect middle class as well as poor blacks. (14)
A second broad cause of continuing black disadvantage is racial stigma--habits of racial classification, perception generalization, and interpretation, and modes of identification that mark blacks as unworthy, undeserving, pathological, and alien--not fully "us." (15) Slavery constituted blacks as a dishonored race; Jim Crow branded them as an untouchable caste. Although the overt hostility of such "old-fashioned" racism has waned, it has left behind subtler forms of systematic bias against blacks, residing more in cognitive than affective mechanisms, more unconscious than willingly avowed as such. (16) Pervasive stigmatization of blacks has been documented in survey research, (17) psychological experiments, (18) and content analyses of the media. (19)
Racial stigma, besides constituting a profound expressive harm to blacks, has multiple deleterious material effects. It causes subtle forms of unconscious employment discrimination. (20) It underlies discrimination in consumer markets. (21) It causes what Glenn Loury calls "discrimination in contact"--pervasive tendencies of nonblacks to shun contact with blacks, or limit their contact to formal, arms-length relationships. (22) This shunning is manifested in such phenomena as white flight, low rates of intermarriage with blacks, the reluctance of nonblacks to adopt black children, and the exclusion of blacks from informal networks of association and mentorship that are so critical to educational and career advancement. Racial stigma thereby impairs the opportunities of blacks to develop their talents. (23) It also frames public discourse so as to characterize the disadvantages of blacks as "their" problem rather than "ours," as manifestations of biological inferiority or cultural pathology rather than externally imposed disadvantages. Such framings induce "racial negligence" on the part of political institutions: systematic failures to investigate the often grossly disadvantageous impact of public policies on blacks, and indifference to these impacts when they come to light. (24) Blacks' awareness of the ways they are stigmatized also causes material as well as psychological harm. "Stereotype threat"--stressful responses to situations in which blacks anticipate that their behavior might be judged as confirming a demeaning stereotype--impairs black performance on standardized tests and thereby limits their educational opportunities. (25) There is also growing evidence that the psychological stress of stigmatization and its attendant daily humiliations--which affects middle class (26) as well as poor blacks--has deleterious effects on health. (27)
Centuries of massive state and private racial discrimination created the segregation and racial stigma that so gravely disadvantage blacks today. But once established, these mechanisms are individually self-sustaining. De facto job segregation, by isolating blacks from the social networks that could lead them out, begets more segregation. (28) Racial stereotypes cause stereotype-reinforcing habits of perception: greater readiness to notice stereotype-confirming than stereotype-defying features of blacks, lesser readiness to notice heterogeneity within the black population. (29) Moreover, racial stereotypes, when they induce race-based differential treatment, can generate evidence that seems to confirm the stereotype. If taxi drivers are reluctant to pick up blacks for fear that they will be robbed, honest blacks may be more likely than black robbers to give up trying to hail taxis, leaving a pool of black taxi-hailers disproportionately composed of robbers--hence confirming the taxi drivers' stereotype. (30)
Racial segregation and racial stigma are also mutually self-reinforcing. Stigma causes white flight, which causes residential segregation. Job segregation introduces a racial element to managers' stereotypes about those most fit for the job, which causes managers to hire people for the job whose race matches that of the incumbents. (31) Thus, these mechanisms of systematic black disadvantage survive long past the end of formal state discrimination and the waning of intentional, illegal private-sector discrimination. They "lock in" the effects of past purposeful state and private discrimination, generate subtler forms of often unconscious and legal discrimination, and inflict myriad kinds of direct damage to blacks that are unmediated by any form of discrimination.
II. RACIAL INTEGRATION AS A REMEDY AND IDEAL
No controversial or sophisticated moral assumptions are needed to recognize that the mechanisms of systematic racial disadvantage described above are deeply unjust. Segregation and racial stigma are the continuing effects of massive wrongdoing in the past. Justice requires that one not only cease intending to wrongfully injure others, but also dismantle any wrongfully established mechanisms that continue to do damage even in the absence of a continuing intention to do so. This is not a matter of reparations for past wrongs. The wrongs are still happening.
Even if current racial stigmatization and segregation were not caused by past wrongdoing, they would still be unjust. Racial stigmatization harms people on the basis of invidious stereotypes and other pernicious cognitive biases. Racial segregation violates even a weak principle of racial equality of opportunity, confined to the idea that one's racial status should not figure in causal mechanisms that put one at a profound disadvantage in access to opportunities.
The real difficulty is not in judging that segregation and racial stigmatization are unjust, but in figuring out how to undo them. Current antidiscrimination laws are insufficient because much segregation and stigma are self-sustaining. Nor can such laws be extended to cover discrimination in contact, because that would violate individual rights to freedom of association in intimate relations. States have limited power to prevent white flight.
States do have the power to integrate their own institutions, especially the public schools. If racial segregation is the problem, then racial integration is a remedy. This remedy serves to correct injustices within the state and to ameliorate segregation in the wider world. The school-age and college years are a formative period of life, during which people form friendships, acquaintances, and habits of association that persist through adulthood. Students who have attended more racially integrated schools are more likely to have racially diverse friends, co-workers, and neighbors than those who have attended racially homogeneous schools. (32) Racial integration of schools is therefore a direct remedy for the isolation from social networks that is a prime cause of black economic disadvantage, and an indirect spur to integration in other domains.
Racial integration is also a remedy for stigmatization. By integration, I mean the joint participation on terms of equality of members of different racial groups in a social setting. According to the "contact hypothesis," prejudice is reduced by sustained, institutionally supported intergroup cooperation among equal status individuals (i.e., peers or co-workers). (33) Cooperation toward a shared goal induces favoritism toward those in the cooperative group, which can override race-based biases. (34) When people focus on achieving common goals with peers, they have reasons to search for and use individuating information about the cooperators, rather than relying on stereotypes. (35) The …